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GIFT   OF 


CHARLES  S.  ELGUTTER 


A  Citizen  of  the 
United  S  ta  tes 

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An  Address 
Charles  S.  Elgutter 

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Deliverei 

i  before  the  Nebraska  State  Bar  Asi 
at  Omaha,  December  29,  1909 

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KLOPP  &  BARTLETT  CO.. 

OMAHA 


A  Citizen  of  the  United  States. 


|URING  the  Civil  War  Edward  Everett  Hale,  as  an 
incentive  to  patriotism,  wrote  the  story,  "A  Man 
Without  a  Country."  The  principal,  Philip  Nolan, 
a  naval  officer  in  the  service  of  the  United  States, 
one  day  in  a  spirit  of  insubordination,  damned 
the  United  States  of  America.  For  this  offense 
he  was  tried  and  court-martialed.  His  punish- 
ment was  fixed  that  henceforth  he  should  be  confined  on  board  a 
naval  vessel,  and  should  be  kept  on  the  high  seas,  nevermore  to 
touch  foot  on  American  soil,  hear  the  name  America  or  see  any 
portion  of  the  United  States. 

For  many,  many  years,  so  the  story  goes,  he  passed  his  life  a 
prisoner  on  board  ship  somewhere  on  the  restless  waters  of  the 
ocean.  His  country  became  a  memory,  its  history  a  blank;  no  one 
was  permitted  to  speak  to  him  of  his  native  soil,  and  in  no  manner 
did  he  learn  from  human  lips  the  fateful  crisis  of  the  Civil  War. 
At  the  end  he  dies  broken-hearted  and  repentant,  indeed,  a  man 
without  a  country. 

It  was  not  alone  Philip  Nolan  in  Edward  Everett  Hale's  dra- 
matic story  who  could  exclaim  in  his  anguish  that  he  was  a  man  with- 
out a  country.  For  almost  a  century  after  the  establishment  of  the 
Federal  Government  and  the  union  of  the  States,  every  person  of 
the  United  States  could  have  echoed  Nolan's  cry,  not  in  the  bitter- 
ness of  punishment,  but  in  the  realization  of  an  unpleasant  truth. 
By  one  of  those  curious  omissions  in  that  almost  faultless  docu- 

313968 


ment,  the  Federal  Const! oution,  when  adopted  in  1789  nowhere 
defined  citizenship  or  determined  who  was  a  citizen  of  the  United 
States.  It  failed  to  enumerate  the  qualifications  required  for 
citizenship,  yet  the  whole  purport  of  that  charter  was  concerned 
with  establishing  a  government  for  citizens  of  the  United  States. 

The  omission  was  not  accidental.  It  was  significant.  It  re- 
flected the  condition  and  temper  of  the  times,  when  the  making  of 
the  nation  was  in  embryo;  and  the  forces  of  interdependence  and 
centralization,  the  steamship,  the  railroad,  the  telegraph,  and  the 
daily  newspaper  were  unknown;  when  Philadelphia  was  a  fort- 
night's distance  from  Boston;  and  when  commerce  between  states 
was  insignificant  and  the  little  that  took  place  was  impossible, 
except  by  sea,  carried  in  vessels  of  light  tonnage. 

It  was  a  matter  of  personal  pride  to  be  a  citizen  of  a  great  state 
like  Virginia,  Massachusetts,  New  York  or  South  Carolina.  To  be 
addressed  as  a  citizen  of  the  United  States  conveyed  no  meaning, 
and  was  something  to  be  resented  as  chimerical  and  unreal.  We 
must  translate  ourselves  to  that  period  to  understand  why,  of  all 
statesmen,  James  Wilson,  Alexander  Hamilton  and  John  Marshall 
alone  conceived  one  land,  one  people,  one  law. 

No  straight  line  marks  the  historical  development  of  the  citizen 
of  the  United  States.  He  grew  into  political  significance  with  the 
commercial  and  industrial  interdependence  of  the  people,  and  a 
realization  that  such  people  constituted  a  nation.  His  evolution 
from  the  modest  conception  in  the  early  days  to  his  importance  at 
this  time  was  gradual,  for  the  idea  of  citizenship  of  the  United 
States  as  distinct  from  citizenship  of  the  state,  as  the  question  came 
before  the  country  from  time  to  time,  was  of  slow  growth  and  con- 
fusing in  application.  To  be  candid,  the  full  meaning  of  what  is 
implied  in  citizenship  of  the  United  States  is  not  understood  even  in 
our  own  day  and  generation. 

Some  time  after  the  beginning  of  the  young  republic,  the  course 
of  events  forced  a  conviction  that  the  citizen  of  the  United  States 
spoken  of  in  the  constitution  was  something  more  than  a  mere  legal 
fiction.  His  existence  apart  from  citizenship  of  a  state,  however, 
was  denied.  If  his  existence  was  admitted,  it  was  said  that  he  was 
a  citizen  of  the  United  States  by  courtesy,  clothed  with  such  politi- 
cal significance  only  through  and  by  reason  of  his  being  a  citizen  of 
one  of  the.  states  composing  the  nation. 

Congress  at  no  time  attempted  to  define  his  place  by  formal 
legislation.  It  was  left  to  the  slow  process  of  the  courts  to  work  out 
and  define  national  citizenship  piecemeal  in  desultory,  private 


decisions,  affecting  his  status,  his  rights  and  his  duties.  When  the 
courts  were  called  upon  to  pass  on  the  legal  and  political  rights  of  a 
person  born  in  the  District  of  Columbia  or  residing  in  one  of  the 
early  territories  like  Michigan  and  Minnesota,  greater  embarrass- 
ment arose.  Such  person  was  in  a  more  precarious  position  because, 
not  being  a  citizen  of  a  state,  his  relation  to  the  nation  was  in  greater 
doubt.  As  a  result,  the  status  of  the  people  of  the  territories  with 
respect  to  national  citizenship  has  not  been  judicially  determined  as 
a  finality  even  to  this  day.  It  is  still  open  to  controversy,  as  we  all 
know,  when  the  civil  rights  of  the  native  inhabitants  of  our  recent 
colonial  possessions  in  Porto  Rico,  the  Pacific  and  elsewhere  are 
under  discussion. 

From  the  time  of  the  adoption  of  the  Constitution  in  1 789  to  the 
passage  of  the  Fourteenth  Amendment  in  1868,  and  since  that  period, 
extending  for  more  than  a  century,  citizenship  of  the  United  States 
in  various  relations  was  a  subject  of  vital  discussion  in  Congress,  was 
a  source  of  disagreement  by  the  courts,  a  cause  of  embarrassment  to 
the  executive  department,  and  brought  about  momentous  upheavals 
among  the  people  in  their  political  status. 

Citizenship  of  the  United  States  assumed  a  significance  never 
before  realized  with  the  acquisition  of  Louisiana  and  the  accession 
of  Texas  and  California  and  the  increasing  power  of  Federal  govern- 
ment by  reason  of  territorial  enlargement.  Its  significance  soon 
became  serious,  and  its  consideration  grew  virulent  as  the  status  of 
the  negro,  when  emancipated  and  finally  freed  as  a  race,  pressed  for 
solution. 

Speaking  to  Congress  as  late  as  1833,  John  C.  Calhoun,  then  a 
senator  from  South  Carolina,  defined  citizenship  in  the  accepted 
sense : 

"If  by  a  citizen  of  the  United  States  is  meant  a  citizen  at  large, 
whose  citizenship  extends  to  the  entire  geographical  limits  of  the 
country  without  having  a  local  citizenship  in  some  state  or  territory, 
a  sort  of  citizenship  of  the  world,  such  citizenship  must  be  a  perfect 
nondescript." 

The  supreme  test  came  with  the  famous  Dred  Scott  decision, 
when  the  Calhoun  definition  of  1833  was  elaborated,  and  was  given 
the  force  of  law  by  the  Supreme  Court. 

John  C.  Calhoun  of  South  Carolina,  guiding  spirit  of  his  party 
in  the  Senate  and  moulder  of  public  opinion,  voiced  the  popular  con- 
ception regarding  citizenship  of  the  United  States;  but  it  was  not 
until  twenty -five  years  later,  when  in  1858  the  Supreme  Court  set 
its  seal  of  approval  on  this  dicta  by  construing  the  Constitution  and 


declaring  as  law  that  a  person  was  a  citizen  of  the  United  States 
only  through  his  citizenship  of  one  of  the  states.  The  generally 
accepted  theory  of  citizenship,  received  judicial  affirmation  in  the 
Dred  Scott  decision. 

By  a  strange  perversity,  the  question  of  citizenship  arose  in  a 
case  to  determine  whether  a  black  man  had  a  right  as  a  matter  of 
law,  to  bring  suit  in  the  United  States  courts,  a  privilege  accorded  to 
citizens  of  the  United  States.  This  action,  one  of  the  most  important 
ever  determined  in  its  effect  upon  the  history  of  our  country,  had  a 
most  humble  and  remarkable  origin.  The  parties  in  interest  never 
for  a  moment  suspected  the  political  volcano  which  slumbered  in 
its  apparently  innocent  procedure.  The  suit  at  first  attracted  no 
particular  attention,  as  it  apparently  was  a  controversy  between 
private  parties  in  which  the  public  had  no  real  concern.  But  by 
the  time  the  case  reached  the  Supreme  Court  the  real  issues  involved, 
citizenship  of  the  United  States,  status  of  the  negro,  free  soil  and 
slave  territory,  the  Missouri  Compromise,  loomed  up  with  direful 
forebodings  behind  the  action  of  this  humble  black  man.  And  there 
was  arrayed  on  one  side  the  partisans  of  free  soil  and  on  the  other 
the  champions  of  slavery  throughout  the  country  during  its  final 
consideration  by  the  highest  court  of  the  land  called  upon  to  con- 
strue the  rights  of  the  negro,  if  any  he  had  under  the  Constitution. 

It  may  not  be  out  of  place  to  outline  the  facts  involved  in  the 
case.  Dred  Scott  was  a  negro  slave  born  in  Missouri.  His  master, 
an  army  officer,  in  1834  took  him  to  Illinois,  a  state  where  slavery 
was  prohibited  by  statute.  In  1836  his  master  took  him  to  Minne- 
sota, at  that  time  a  territory  in  which  slavery  was  prohibited  by 
Congress  in  1820,  in  the  act  know^n  as  the  Missouri  Compromise. 
From  Minnesota  his  master  was  transferred  in  1838  to  Jefferson  Bar- 
racks, near  St.  Louis,  and  took  Dred  Scott  and  his  family  back  to 
Missouri.  Here  Scott  was  sold  by  his  master  as  a  slave  to  John 
Sandford  of  New  York. 

Scott  passed  into  the  hands  of  his  new  master,  and  was  whipped 
for  a  trifling  offense,  an  occurrence  not  unusual  in  those  days.  Some 
sharp-witted  lawyer,  the  ambulance-chaser  of  his  day,  who  scented 
a  fee,  probably  induced  Scott  to  bring  suit  for  damages  against 
Sandford  on  the  ground  that  by  his  residence  in  Illinois  and  Minne- 
sota, free  soil  where  slavery  was  prohibited,  he  was  a  free  man;  and 
that  his  being  held  as  a  slave  and  the  whipping  constituted  an  assault, 
for  which  Scott  demanded  damages  against  Sandford  in  the  sum  of 
$5,000.  Suit  was  filed  in  the  circuit  court  of  the  United  States  for 
the  district  of  Missouri,  alleging  diverse  citizenship,  that  practice 


being  permitted  by  the  Constitution  for  a  citizen  of  one  state  to  sue 
a  citizen  of  another  state,  provided  of  course  Dred  Scott  was  a 
:itizen  of  the  state  of  Missouri,  and  the  defendant  Sandford  was  a 
citizen  of  the.  state  of  New  York,  as  set  forth  in  the  negro's  declara- 
tion. Sandford 's  plea  to  the  jurisdiction  of  the  court  denied  that 
Scott  was  a  citizen  of  Missouri,  or  of  any  other  state,  and  alleged 
:hat  Scott  was  a  slave  descended  from  negro  ancestors,  and  was  the 
property  of  Sandford,  and  for  that  reason  he  had  no  standing  in 
:he  court  of  the  United  States,  and  his  petition  should  be  dismissed 
:or  lack  of  jurisdiction.  Scott  demurred  to  the  plea,  and  on  hearing 
;he  circuit  court  found  for  the  plaintiff,  and  sustained  the  demurrer, 
whereupon  Sandford  filed  answer  denying  the  charges  alleged. 
After  a  trial  upon  the  issue  of  fact  before  a  jury,  the  verdict  found 
the  defendant  Sandford  not  guilty.  A  writ  of  error  was  issued  to  the 
Supreme  Court  December,  1854. 

The  case  was  squarely  before  the  Supreme  Court  of  the  United 
States,  turning  upon  the  question  whether  Dred  Scott,  a  negro, 
had  any  claim  to  citizenship  by  reason  of  his  having  lived  on  free 
soil.  Three  years  later,  after  twice  argued,  the  court  speaking 
through  Chief  Justice  Taney  decided  against  Scott,  dismissing  his 
petition  for  the  reason  he  was  not  a  citizen  of  the  United  States ;  and 
as  a  negro  could  not  acquire  citizenship,  the  circuit  court  of  the 
United  States  had  no  jurisdiction  to  hear  and  determine  the  case. 

The  court  in  construing  who  were  citizens  of  the  United  States 
interpreted  the  words  "People  of  the  United  States"  and  "Citizens 
of  the  United  States,"  as  used  in  the  Constitution,  to  be  synony- 
mous terms,  and  that  wherever  the  words  "states"  or  "United  States" 
occurred,  they  are  to  be  strictly  construed  to  mean  the  original 
thirteen  states  and  such  other  states  as  were  admitted  to  the  Union 
from  time  to  time. 

"The  people  of  the  respective  states  were  the  parties  to  the 
Constitution,"  said  Justice  Taney.  "These  people  consist  of  the 
free  inhabitants  of  those  states.  They  had  provided  in  their  Con- 
stitution for  the  adoption  of  a  uniform  rule  of  naturalization,  and 
that  their  descendants  and  persons  naturaUzed  were  the  only  per- 
sons who  could  be  citizens  of  the  United  States.  Citizenship  of  the 
United  States  came  through  the  citizenship  of  the  several  states, 
but  there  was  one  restriction.  While  each  state  confers  its  own 
citizenship  on  any  class  or  description  of  persons  it  thinks  proper, 
such  as  a  free  person  descended  from  Africans  held  in  slavery,  yet 
such  a  person  would  not  be  a  citizen  of  .the  United  States  for  the 
reason  that  the  state  could  not  introduce  any  person  or  description 


8 

of  persons  who  were  not  intended  to  be  embraced  in  the  new  politi- 
cal family,  which  the  Constitution  brought  into  existence,  but  werCi 
intended  to  be  excluded  from  it.  Consequently  a  man  of  African 
descent,  as  the  negro  Dred  Scott,  whether  slave  or  free  was  not  and 
could  not  be  a  citizen  of  the  United  States." 

Thirty  years  later  the  same  court,  in  1888,  considering  the/ 
application  to  American  citizenship  of  the  Chinese  or  persons  othei 
than  of  the  white  race,  speaking  through  Justice  Field,  followec 
Justice  Taney  to  the  effect,  that  Chinamen  cannot  be  citizens  of  th( 
United  States  because  such  persons  were  not  intended  by  th( 
people  adopting  the  Constitution  to  be  embraced  in  the  political! 
family  known  as  the  citizens  of  the  United  States.  ' 

Justice  Curtis  of  Massachustets,  sitting  in  the  Dred  Scott  case, 
dissented  from  the  opinion  of  Taney  and  was  the  first  jurist  on  the 
Supreme  Bench  to  declare  the  right  of  a  free  negro  to  citizenship. 
Nevertheless,  he  agreed  with  the  majority  of  the  court,  that  under 
the  Constitution  citizenship  of  the  United  States  with  reference  to 
natives  was  dependent  upon  citizenship  in  the  several  states  under 
their  respective  constitutions  and  laws;  but  where  any  free  person, 
descended  from  Africans  held  in  slavery,  was  a  citizen  of  a  state 
under  the  Confederation,  he  became  by  that  fact  a  citizen  of  the 
United  States  on  the  adoption  of  the  Constitution. 

"I  can  find,"  says  the  eminent  jurist,  in  his  dissenting  opinion, 
"nothing  in  the  Constitution  which  by  its  own  force  deprives  of 
their  citizenship  any  class  of  persons  who  were  citizens  of  one  of  the 
states  at  the  time  of  the  adoption  of  the  Constitution ;  nor  any  power 
enabling  Congress  to  disfranchise  persons  born  on  the  soil  of  any 
state  by  its  constitution  and  laws.  And  my  opinion  is  that  under 
the  Constitution  of  the  United  States  every  free  person,  even  an 
emancipated  negro  born  on  the  soil  of  a  state,  who  is  a  citizen  of 
that  state  by  force  of  its  constitution,  is  also  a  citizen  of  the  United 
States." 

The  divergent  views  of  the  two  schools  of  constitutional  con- 
struction regarding  the  status  of  a  free  negro,  one  denying,  the 
other  recognizing  his  rights  to  citizenship  of  the  United  States  have 
passed  into  memorable  history.  Whichever  view  may  have  been 
right  in  legal  interpretation,  the  adoption  of  the  Fourteenth  Amend- 
ment by  the  people  ten  years  after  the  decision,  set  aside  the  Dred 
Scott  decision  of  the  Supreme  Court  as  a  rule  of  law  respecting  the 
negro,  and  changed  the  whole  subject  of  citizenship,  by  removing 
from  doubt  and  discussion  the  bitter  and  long-standing  dispute. 

The  Fourteenth  Amendment  recognizes  in  express  terms,  if  it 


does  not  in  fact  create,  citizens  of  the  United  States.  It  makes 
citizenship  depend  upon  the  place  of  one's  birth,  or  the  fact  of  one's 
adoption  under  the  law  of  naturalization,  and  not  upon  the  constitu- 
tion or  laws  of  any  state  or  the  condition  of  one's  ancestry. 

Henceforth  the  American  enjoyed  a  recognized  double  citizen- 
ship. He  is  at  once  a  citizen  of  the  United  States  by  birth,  and  he 
is  a  citizen  of  a  state  as  a  matter  of  choice.  Birth  as  a  test  of 
citizenship  is  a  rule  common  to  many  countries.  From  earliest 
times  in  English  jurisprudence,  it  was  laid  down  as  a  broad  prin- 
ciple that  the  place  of  birth  fixed  the  place  of  citizenship.  A  child 
born  within  any  territory  subject  to  the  King  of  England,  is  a 
natural  born  subject  to  the  king,  and  is  no  alien  in  England.  This 
was  the  rule  of  the  American  colonies  prior  to  1776,  so  that  the 
Fourteenth  Amendment  in  this  respect  reaffirmed  the  common  law. 

The  distinction  between  citizenship  of  the  United  States  and 
citizenship  of  a  state  is  clearly  recognized  and  established.  Not 
only  a  man  may  be  a  citizen  of  the  United  States  without  being  a 
citizen  of  a  state,  but  an  important  element  is  necessary  to  convert 
the  former  into  the  latter.  He  must  reside  within  the  state  to  make 
him  a  citizen  of  it.  But  it  is  only  necessary  that  he  should  be  born 
or  naturalized  in  the  United  States  to  be  a  citizen  of  the  Republic. 

Prior  to  the  Fourteenth  Amendment,  a  citizen  of  the  United- 
States  must  first  be  qualified  as  a  citizen  of  some  state.  After  the 
Fourteenth  Amendment,  a  citizen  of  a  state  is  merely  a  citizen  of  the 
United  States  residing  in  that  state. 

Under  the  Constitution,  certain  rights,  privileges  and  immuni- 
ties belong  to  an  American  as  a  free  man  and  a  free  citizen.  After 
1868  these  rights  belong  to  him  as  a  citizen  of  the  United  States, 
and  are  not  dependent  upon  his  citizenship  of  any  state. 

The  Fourteenth  Amendment  does  not  confer  any  new  privi- 
leges or  immunities  upon  the  citizen,  or  attempt  to  define  or  to 
enumerate  those  already  existing.  The  Fourteenth  Amendment 
assumes  that  there  are  such  privileges  and  immunities,  which  be- 
long of  right  to  a  person  as  a  citizen  of  the  United  States,  and  or- 
dains that  they  shall  not  be  abridged  by  state  legislation. 

The  Fourteenth  Amendment  in  part  reads  as  follows : 

"All  persons  born  or  naturalized  in  the  United  States  and 
subject  to  the  jurisdiction  thereof  are  citizens  of  the  United  States 
and  of  the  state  wherein  they  reside.  No  state  shall  make  or  en- 
force any  law  which  shall  abridge  the  privileges  or  immunities  of 
citizens  of  the  United  States." 

This  addition  to  the  Bill  of  Rights  is  of  great  historical  import- 


lO 

ance.  Its  immediate  purpose  following  the  Civil  War  of  1861,  and 
the  abolition  of  slavery  in  1863,  was  to  throw  about  the  unfortu- 
nate negro  race  further  civil  and  political  protection,  which  the 
Thirteenth  Amendment  abohshing  slavery  failed  to  secure.  In  a 
spirit  of  magnanimity  the  Fourteenth  Amendment  was  enacted  for 
the  negro's  express  benefit.  Henceforth  the  negro  and  his  descend- 
ants were  created  citizens  of  the  United  States  and  of  the  p:.rticular 
states  wherein  they  reside,  and  the  intention  was  that  they  were  to 
be  given  all  the  benefits  and  all  the  immunities  which  by  right  of 
free  men  white  citizens  of  the  United  States  enjoy.  But  the  re- 
sults of  the  Fourteenth  Amendment  are  broader.  In  effect  the  Four- 
teenth Amendment  withdrew  from  the  states  powers  theretofore 
enjoyed  by  them  to  an  extent  not  yet  fully  ascertained,  and  it  is 
the  province  of  the  Supreme  Court  to  differentiate  these  powers  so 
necessary  to  the  perpetuity  of  our  dual  form  of  government. 

It  was  the  boast  of  the  Roman,  to  be  a  citizen  of  Rome  was  to 
be  greater  than  a  king.  Cicero  has  preserved  in  the  orations  against 
Verres,  that  tyrant  who  crucified  a  Roman  citizen  in  defiance  of 
Roman  law,  a  striking  illustration  of  the  sacredness  of  the  person 
of  a  Roman  citizen.  If  such  was  the  Roman  conception,  what  shall 
be  said  of  the  power  and  dignity  that  hedge  about  a  citizen  of  the 
great  American  Republic  ? 

The  privileges  and  immunities,  which  the  American  citizen 
enjoys,  are  not  easily  defined.  They  are  those  which  are  funda- 
mental, which  belong  to  citizens  of  a  free  government,  and  which  are 
comprehended  in  the  words  of  the  Declaration  of  Independence, 
life,  liberty  and  the  pursuit  of  happiness;  and  are  included  in  the 
preamble  of  the  Constitution,  "to  establish  justice,  insure  domestic 
tranquility,  promote  the  general  welfare  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity."  The  privileges  and  im- 
munities of  a  citizen  of  the  United  States  are  as  broad  and  as  strong 
as  the  arm  of  the  nation  is  able  and  willing  to  enforce  his  rights. 
They  arise  out  of  the  nature  and  essential  character  of  the  national 
government  or  are  specifically  granted  or  secured  to  all  citizens  or 
persons  by  the  Constitution  of  the  United  States  or  its  laws  and 
treaties  made  in  pursuance  thereof,  as  distinguished  from  those 
belonging  to  the  citizens  of  a  state. 

To  the  national  citizen  are  guaranteed  the  right  to  pass  freely 
from  state  to  str  te,  the  right  of  habeas  corpus,  trial  by  jury,  access 
to  the  Federal  courts,  the  free  exercise  of  religion,  free  speech,  a 
free  press,  the  right  to  peaceably  assemble  and  to  petition  the  Con- 
gress for  a  redress  of  grievances,  to  receive  protection  in  the  right 


II 


to  vote  for  national  officers,  and  the  right  of  not  being  deprived  of 
life,  liberty,  or  property  without  due  process  of  law.  The  citizen 
cannot  be  arbitrarily  despoiled  of  his  property ;  equally  with  others 
he  shall  enjoy  personal  and  civil  rights.  What  the  Constitution 
expresses  in  general  terms,  the  laws  of  Congress  and  judicial  inter- 
pretation have  ampUfied  to  meet  new  conditions. 

To  citizens  of  the  United  States  is  given  the  right  to  the  pubhc 
domain,  and  the  right  of  homestead  upon  the  public  lands,  the 
benefits  of  copyright,  and  the  right  to  be  protected  against  violence 
while  in  the  lawful  custody  of  the  United  States  marshal. 

A  privilege  of  a  citizen  of  the  United  States  is  to  demand  and 
receive  the  care  and  protection  of  the  Federal  Government  over 
his  life,  liberty  and  property  when  on  the  high  seas,  or  within  the 
jurisdiction  of  a  foreign  power.  Armed  with  his  patent  of  nobiUty, 
his  American  passport,  he  may  safely  go  to  any  country  in  the 
world  with  which  the  United  States  has  entered  into  a  treaty  of 
friendship,  secure  in  the  protection  of  his  person  and  his  property. 

Another  privilege  is  that  a  citizen  of  the  United  States  shall 
have  the  same  property  right  in  every  state  and  territory  as  is 
enjoyed  by  the  citizens  of  each  state  and  territory.  He  shall  have 
the  Hberty  and  the  right  to  follow  any  of  the  ordinary  calUngs  of 
life.  Another  privilege  is  that  no  discrimination  shall  be  made  by 
one  state  against  the  citizens  of  another  state  or  against  the  citizens 
of  the  United  States.  Under  the  Fourth  Article  of  the  Constitution, 
equahty  is  expressly  secured  between  citizens  of  different  states; 
under  the  Fourteenth  Amendment  the  sarne  equality  is  secured 
between  citizens  of  the  United  States. 

This  equality  of  right  in  lawful  pursuits  throughout  the  whole 
country  is  the  distinguishing  privilege  of  citizens  of  the  United  States. 
Each  state  may  freely  prescribe  such  regulations  as  will  promote 
the  public  health,  secure  the  good  order  and  advance  the  general 
prosperity  of  society.  When  once  prescribed  the  pursuit  must  be 
free  to  be  followed  by  every  citizen  of  the  United  States  who  will 
conform  to  the  regulations. 

American  history  is  full  of  examples  of  the  protection  extended 
for  violation  of  the  citizen's  rights  abroad  and  vindication  of  the 
Nation's  honor.  The  war  with  Tripoli  and  the  punishment  of  the 
Barbery  pirates  in  the  infant  days  of  the  RepubHc  showed  the 
Nation's  temper  in  behalf  of  American  citizens  on  the  high  sea.  The 
second  war  with  England  was  a  protest  against  seizure  and  im- 
pressment of  American  seamen,  whether  native  or  naturcohzed. 

The  Pericardis  affair  in  Morocco  and  the  Ellen  M.  Stone  outrage 


12 


in  Bulgaria,  have  not  yet  passed  out  of  mind  of  the  goverment's 
efforts  in  behalf  of  kidnapped  citizens.  The  execution  of  Groce  and 
Cannon  by  Zelaya  and  the  protest  of  the  State  Department,  en- 
forced by  the  navy  against  the  arbitrary  action  of  the  President  of 
Nicaragua,  is  the  latest  expression  of  the  national  government  in 
behalf  of  citizens  of  the  United  States.  The  American  missionary  in 
Turkey  and  in  China  is  protected  under  the  stars  and  stripes.  The 
periodic  interference  in  Venezuela,  in  Santo  Domingo  and  Central 
America  are  the  perennial  attempts  of  the  United  States  to  protect 
the  persons  and  property  and  business  interests  of  American  citizens 
in  the  turbulent  republics.  While  the  persistent  refusal  of  Russia 
to  permit  American  citizens  of  Jewish  religion  to  enter  or  reside  in 
Russia  equally  with  American  citizens  in  general  has  at  times 
reached  acute  conditions  in  diplomatic  correspondence  and  given 
rise  to  protests  in  the  platforms  of  national  parties. 

Likewise  in  domestic  affairs,  the  Interstate  Commerce  Com- 
mission and  the  legislation  in  Congress  to  extend  its  powers  in 
railroad  regulation  may  be  an  exercise  of  governmental  supervision 
over  railroads  under  the  commerce  clause  of  the  Constitution.  But 
its  effect  is  the  relief  of  the  citizen  of  the  United  States  engaged  in 
traffic  between  states  against  unjust  discrimination.  So,  too,  the 
investigation  into  the  beef  trust,  Standard  Oil  and  other  alleged 
monopolies  is  merely  another  phase  of  government  inquiry  through 
its  law-making  functions  and  its  executive  departments  to  insure  to 
the  citizen  his  privileges  and  immunities  throughout  the  country  of 
the  United  States. 

We  are  accustomed  in  our  internal  affairs  to  rely  on  the  Federal 
courts  for  the  redress  of  such  abuses  against  citizens  of  the  United 
States,  and  the  records  of  the  courts  are  voluminous  with  decisions 
restraining  individuals  and  even  states  from  unconstitutional  acts 
against  the  citizen.  Interference  by  the  Executive  and  by  Congress 
rarely  exercised,  is  however,  often  viewed  with  alarm  as  radical 
and  an  encroachment  upon  the  states.  But  the  judiciary  is  only 
one  branch  of  government  machinery.  When  necessary  the  entire 
force  of  national  power  must  be  exercised  at  home  as  well  as  abroad 
in  behalf  of  citizens  of  the  United  States  deprived  unjustly  of  funde- 
mental  rights.  There  has  always  existed  a  delicacy  and  reluctance 
on  the  part  of  the  Federal  Government  to  interfere  with  the  internal 
affairs  of  a  state  in  the  protection  of  the  violated  rights  of  a  citizen 
of  the  United  States.  This  is  especially  true  of  Congress  and  of  the 
President.  Only  on  rare  occasions  has  the  Executive  power  been 
directly  exercised.    The  jealousy  of  a  state  against  what  is  termed 


13 

Federal  interference  and  encroachment  is  easily  aroused  and  re- 
sented. South  Carolina  in  1833  resisted  President  Jackson's  attempt 
to  collect  duties  on  imports.  Governor  Altgeld,  of  Illinois,  during 
the  railroad  strikes  of  1894,  bitterly  opposed  President  Cleveland's 
proclamation  directing  Federal  troops  to  protect  from  obstruction 
United  States  mails  in  the  city  of  Chicago.  Such  Executive  inter- 
ference in  a  state  has  been  justified  on  the  ground  of  protecting 
property  of  the  United  States.  If  the  dignity  of  the  United  States 
is  assaulted  by  the  unlawful  interference  with  its  property  or  with 
its  mails  or  with  its  administration,  is  not  its  dignity  equally  in- 
sulted when  one  of  its  citizens  cannot  obtain  the  protection  of  the 
state  to  which  he  is  lawfully  entitled  and  wherein  he  resides?  Is 
there  any  reason  why  the  national  power  should  not  be  more  often 
invoked  at  least  through  the  criminal  or  the  equity  side  of  the  Fed- 
eral courts,  to  protect  a  citizen  of  the  United  States,  tho'  he  be 
a  citizen  of  a  state,  from  mob  violence  in  that  state,  and  to  punish 
those  engaged  in  lynching  negroes  as  in  South  Carolina ;  or  in  forceful 
deporting  of  riotous  miners  out  of  the  state,  as  in  Colorado ;  or  in  burn- 
ing their  victim  at  the  stake,  as  in  Mississippi;  or  in  the  excesses  of 
the  night  riders,  as  in  Kentucky,  whenever  the  officers  of  that  state 
charged  with  executive  or  judicial  power  fail  in  their  duty,  or  the 
sentiment  of  the  community  of  that  state  tolerates  such  outrages? 
Yet  the  Federal  courts  have  with  reluctance  interposed  in  the  protec- 
tion of  the  life  of  a  citizen  of  the  United  States  jeopardized  in  the 
state  to  which  he  likewise  owes  allegiance,  where  fundamental 
rights  are  invaded. 

Elihu  Root  in  public  address  called  attention  to  the  failure  of 
states  in  the  protection  of  their  own  citizens  in  life  and  property, 
and  the  warning  that  the  supineness  of  the  state  was  an  invitation 
to  the  nation  to  exercise  its  protecting  prerogative  over  its  citizens, 
though  claimed  an  encroachment  on  the  rights  of  the  state  over  its 
own. 

To  the  American  bom  to  the  purple,  the  great  advantages  which 
he  holds  by  right  as  a  citizen  of  the  United  States,  scarcely  give  him 
a  moment's  thought.  Like  Napoleon's  royal  son,  these  honors  and 
these  dignities  have  been  prepared  for  him.  He  has  known  no  other 
conditions.  His  citizenship  sits  lightly  on  his  shoulders.  He  feels 
no  appreciable  burdens,  he  pays,  no  direct  tax  for  the  support  of  the 
national  government.  The  only  time  he  feels  the  big  stick  of  his 
country  and  has  cause  to  grumble  is  when  he  returns  from  Europe 
with  a  trunk  full  of  dutiable  goods,  and  is  subject  to  custom-house 
inspection  and  tariff  charges.    His  undefined  security  and  power  as 


14 

a  citizen  of  the  Republic  he  enjoys  through  his  relations  to  the 
nation.  It  is  not  given  him  by  reason  of  his  citizenship  in  a  state, 
for  he  changes  his  state  as  often  as  he  does  his  coat,  yet  he  knows 
his  privileges  and  immunities  follow  him  up  and  down  the  broad 
domain  of  his  country. 

There  is  one  exception  to  his  prerogatives.  With  all  his  powers, 
the  citizen  of  the  United  States  has  no  right  to  vote.  The  United 
States  has  no  vote  in  the  states  of  its  own  creation.  The  elective 
officers  of  the  United  States  are  all  elected  directly  or  indirectly  by 
state  votes.  Members  of  Congress  are  chosen  by  the  votes  of  citizens 
of  the  states.  Senators  are  elected  by  the  legislatures  of  the  states. 
Presidential  electors  are  elected  by  the  qualified  voters  of  each  state 
or  are  selected  in  such  manner  as  the  legislature  directs.  The  citizen 
of  the  United  States  who  desires  to  vote  cannot  do  so  in  any  state 
unless  he  qualifies  as  a  citizen  under  the  laws  of  that  state.  Each 
state  determines  for  itself  what  qualifications  are  required,  with  the 
prohibition,  however,  under  the  Fifteenth  Amendment,  that  the  right 
of  citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any  state  on  account  of  race, 
color,  or  previous  condition  of  servitude.  In  Nebraska,  for  example, 
the  right  to  vote  is  limited  to  male  persons  of  the  age  of  twenty-one 
or  upwards,  who  shall  have  resided  in  the  state  six  months  and  who 
are  either  citizens  of  the  United  States  or  persons  of  foreign  birth 
who  shall  have  declared  their  intention  to  become  citizens  of  the 
United  States  in  conformity  to  the  Federal  naturalization  laws.  In 
Colorado  male  as  well  as  female  persons  of  required  age  and  qualifica- 
tions may  vote.  But  the  right  of  women  to  vote  in  Colorado  or  in 
Wyoming  or  in  Utah  as  citizens  of  those  states  do  not  qualify  them 
to  vote  in  Nebraska  or  in  any  other  state  where  the  suffrage  is 
withheld  from  females.  The  Federal  Constitution  does  not  confer 
the  right  to  vote  on  any  one  and  suffrage  is  not  a  part  of  citizenship 
of  the  United  States.  Minors  and  women  if  otherwise  competent 
are  citizens  of  the  United  States.  Likewise  lunatics,  paupers  and 
convicts  are  citizens  of  the  United  States,  but  their  citizenship  if 
denied  by  the  states  does  not  embrace  the  right  to  vote. 

With  this  reservation  to  his  sovereignty,  if  the  citizen  of  the 
United  States  appears  careless  of  his  birthright,  the  advantages 
which  he  enjoys  over  other  men  in  the  world  are  eagerly  sought 
after  by  those  who  stand  outside  the  pale  and  seek  adoption  into 
his  family.  With  respect  to  aliens,  that  is,  persons  foreign  born, 
citizenship  of  the  United  States  is  a  white  man's  prerogative.  The 
Civil  War  made  citizenship  the  black  man's  privilege.     Neither  the 


yellow  man  nor  the  brown  man,  neither  Chinese  nor  Japanese, 
neither  Malay,  Hawaiian  nor  Filippino  is  welcome  under  the  laws  of 
naturaHzation,  and  the  red  man  who  is  a  domestic  alien  is  denied 
citizenship  so  long  as  he  is  held  in  tribal  relations  as  ward  of  the 
nation.  The  provisions  of  the  naturalization  laws  apply  to  aliens 
who  are  free-white  persons  and  to  the  negro  of  African  nativity  and 
of  African  descent.  To  all  other  men  the  doors  of  citizenship  through 
naturalization  are  shut;  but  a  person  of  the  excluded  races,  as 
Chinese  or  Japanese,  if  bom  in  one  of  the  states,  as  determined  by 
the  Supreme  Court  of  the  United  States  within  the  past  twenty 
years,  although  of  alien  parentage,  is  by  virtue  of  the  Fourteenth 
Amendment  a  citizen  of  the  United  States. 

Apart  from  the  provisions  by  which  an  individual  acceptable 
to  the  United  States  may  be  naturalized,  whole  communities  during 
the  past  one  hundred  years  have  been  admitted  to  citizenship  by 
treaty  or  by  joint  resolution  of  Congress.  The  relations  which  the 
inhabitants  of  ceded  territory  shall  bear  to  the  United  States  are 
determined  by  the  treaty  of  cession.  Such  treaty  is  the  law  of  the 
land.  Under  the  Louisiana  Purchase  by  the  Treaty  of  Paris  in  1803, 
it  was  provided  that,  "the  inhabitants  of  the  ceded  territory  of 
Louisiana  should  be  incorporated  into  the  union  of  the  United 
States,  and  admitted  as  soon  as  possible  according  to  the  principles 
of  the  Federal  Constitution  to  the  enjoyment  of  all  the  rights  and 
advantages  and  immunities  of  citizens  of  the  United  States."  By 
virtue  of  this  treaty,  the  white  inhabitants  of  the  territory  of  Louis- 
iana ^nd  their  descendants  became  citizens  of  the  United  States 
on  an  equal  footing  with  the  citizens  of  the  original  states.  In  like 
manner  the  white  inhabitants  of  Florida,  New  Mexico  and  Cali- 
fornia, and  Alaska,  were  each  in  turn  admitted  to  citizenship  of  the 
United  States  under  treaty.  The  Republic  of  Texas  was  admitted 
to  the  Union  as  a  state  by  joint  resolution  of  Congress. 

A  radical  departure  was  made,  however,  in  1898  when  Hawaii, 
Porto  Rico  and  the  Philippines  were  annexed  with  the  proviso, 
"that  the  civil  and  political  status  of  the  native  inhabitants  of  the 
territories  ceded  to  the  United  States  shall  be  determined  by  Con- 
gress." In  other  words,  the  native  inhabitants  of  these  possessions 
are  not  citizens.  Whether  the  natives  of  these  islands  at  any  time 
shall  be  admitted  to  the  full  privileges  and  immunities  of  citizens 
of  the  United  States  rests  with  Congress.  It  is  Congress  which 
shall  determine  to  whom  and  to  what  extent  rights  of  citizenship 
shall  be  extended  to  the  native  inhabitants  of  our  insular  possessions. 
At  each  session  the  tendency  is  to  grant  greater  rights  and  privi- 


-)^? " 


i6 


leges  to  the  native  people  of  these  possessions,   as  they  qualify 
themselves  for  a  citizen's  duties. 

A  century  and  a  quarter  of  national  growth  has  developed  in 
the  status  of  citizenship,  curious  and  anomalous  conditions  not 
dreamt  of  by  the  fathers.  At  first  citizenship  of  the  United  States 
was  dependent  and  subordinate  to  citizenship  of  one  of  the  states. 
After  the  Fourteenth  Amendment  citizenship  was  acquired  by  birth 
in  a  state  or  by  naturalization.  Through  changes  brought  about 
mainly  by  judicial  interpretation  a  system  of  caste  has  grown  up. 
All  men  are  not  equal  in  the  Republic.  Only  the  native  born  in  the 
states  enjoy  full  power  embraced  in  the  title,  citizenship  of  the  United 
States.  The  naturalized  citizen  barred  by  constitutional  prohibi- 
tion from  the  President's  chair  may  not  be  conscious  of  that  disabil- 
ity. But  the  people  of  the  territories  may  have  reason  to  complain 
when  their  status  may  be  one  thing  in  the  District  of  Columbia,  a 
different  thing  in  New  Mexico,  and  something  else  in  Alaska.  In 
the  insular  dependencies  the  native  Porto  Rican,  the  Hawaiian  and 
the  Filippino  are  wholly  at  the  pleasure  of  Congress  and  differ  in 
political  and  civil  rights  not  only  from  the  people  of  the  territories, 
but  one  with  another  and  class  with  class.  In  this  year  of  grace,  the 
descendant  of  the  emanicpated  black  man  may  truly  look  down 
with  scorn  upon  his  political  inferior,  the  yellow  man,  the  red  man 
and  the  brown  man.  The  Chinese  youth  born  in  San  Francisco 
may  as  a  patriotic  American  deport  his  alien  father,  while  the  Indian 
as  a  dependent  ward  of  the  nation  must  accept,  no  matter  how  un- 
willingly, guardianship  of  a  grudging  white  man. 


,„  «ooi.  „„.    STAMPED  Uow"""^^  °ATE 


JUL  17 


?.9?5 


OBRAffy  USE 
^  iC'D  LD 

FEB  1 8  t963 


15/n-i2,'24 


3/3S  .,  ^ 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


